Appealability, Probate: Plaintiff’s Appeal Of Trial Court’s Interim Order Allowing Defendant Trustee Access To Trust Funds For Defense Is Rendered Moot When Trial Court Issues New Order Effectively Granting Same Relief As Appealed Order

Unique Provision Of The Probate Code Provided An End Run Around The Stay Created When Plaintiff Appealed And Posted A Bond.

            Probate Code § 1310(b) provides that, “for the purpose of preventing injury or loss to a person or property, the trial court may direct the exercise of the powers of the fiduciary . . . as if no appeal were pending.”  Actions taken under section 1310(b) while the appeal is pending “are valid, irrespective of the result of the appeal.”  As such, an appeal – even if meritorious – cannot reverse nor stop a trustee’s act pursuant to a section 1310(b) order.  Section 1310(b) also provides that “[a]n appeal of the directions made by the court under this subdivision shall not stay these directions.”

            In Mitchell v. Lingelbach, Case No. G057641 (4^th Dist., Div. 3 July 27, 2020) (unpublished), plaintiff daughter filed a petition to invalidate amendments and restatements of her deceased father’s Trust based on capacity, undue influence, mistake and fraud issues.  Additionally, she sought to remove and surcharge her father’s wife as co-trustee; to restrain wife from using Trust assets to defend the action; for an accounting; and to cancel beneficiary designations and deeds acquired by wife and her adult children.

            When the trial court granted wife’s request to access Trust funds to pay for her defense of the Trust, with the trial court granting an initial withdrawal of $150,000 for that purpose, daughter immediately appealed and posted a bond to stay enforcement of the trial court’s fees order.

            Wife responded to the stay by moving under § 1310(b) to lift the stay to allow her to access funds to defend the Trust – with the trial court granting wife’s request and issuing a new order granting the same relief as the interim order on appeal.  Wife then paid her attorneys the $150,000 for their fees, and filed a successful motion to dismiss daughter’s appeal as moot based on the trial court’s § 1310(b) order effectively granting the same relief. 

            Based upon the statutory language of section 1310(b), the appellate panel's hands were essentially tied.  The 4/3 DCA was unable to provide daughter relief from the appealed interim fees order, nor reversal of the 1310(b) fees order, and dismissed daughter’s appeal as moot.  (In re Jessica K. 79 Cal.App.4^th 1313, 1315 (2000).)